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Vera v. United States

United States District Court, D. Connecticut

July 19, 2017




         Jose Santiago Vera (“Petitioner”) filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On October 27, 2006, a jury convicted Mr. Vera of (1) conspiracy to possess with the intent to distribute heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1); and (2) possession of heroin with intent to distribute, and aiding and abetting of the same, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). The Second Circuit affirmed the conviction on direct appeal, United States v. Vera, 362 Fed.App'x. 199 (2d Cir. Jan. 27, 2010), and the United States Supreme Court denied his petition for certiorari review. Vera v. United States, 130 S.Ct. 3341 (2010).

         Mr. Vera puts forth seven separate claims for ineffective assistance of counsel and violation of his constitutional rights. For the reasons set forth below, Mr. Vera's motion is DENIED.

         I. Factual and Procedural Background

         A. Pretrial and Trial Proceedings

         On August 2, 2005, a grand jury in New Haven indicted Mr. Vera and twenty-four other individuals and charged them with various narcotics offenses. See Indictment in 3:05- cr-00195-MRK, ECF No. 18. After Mr. Vera's August 22, 2005 arraignment, Mr. Peter J. Schaffer, Esq., a member of the District's CJA panel, represented him.[1]

         On February 8, 2006, Mr. Schaffer filed a motion to sever Mr. Vera's trial from his co-defendants who were charged with cocaine possession, but did not move to sever Mr. Vera's trial from co-defendant Eduardo Casiano specifically. See Mot. to Sever in 3:05-cr-00195-MRK, ECF No. 488. This Court denied this motion as moot on September 28, 2006, after several co-defendants entered guilty pleas. See Order in 3:05-cr-00195-MRK, ECF No. 861.

         Mr. Schaffer then withdrew from representing Mr. Vera and Mr. Todd Bussert, Esq., assumed the role of Mr. Vera's counsel. See ECF No. 715 in 3:05-cr-00195-MRK. Eventually, all defendants pled guilty, except Mr. Casiano and Mr. Vera. The Court tried Mr. Vera and Mr. Casiano jointly. At trial, Mr. Vera claimed that he was innocent of any heroin charges because he only supplied Mr. Casiano with marijuana. Mr. Casiano did not testify.

         On October 27, 2006, the jury found Mr. Vera guilty of conspiracy to possess with intent to distribute 100 grams or more of heroin and possession with intent to distribute 100 grams of heroin. The jury also found Mr. Casiano guilty. See Jury Verdicts, ECF No. 918-19 in 3:05-cr-00195-MRK.

         Mr. Vera appeared for sentencing on March 21, 2007. See Joint Mot., ECF No. 1146 in 3:05-cr-00195-MRK. The United States (the “Government”) presented evidence in support of its recommended sentence, but the Court did not sentence Mr. Vera on that day. Id. at 2.

         One of the jurors who had found Mr. Vera and Mr. Casiano guilty attended the March 21st hearing. Id. On March 30, the Court received a letter from that juror, which it distributed to both defendants and the Government. See id. at 2 (citing Letter, Ex. 1). The letter stated:

Had I been a jury of one, after the conclusion of the evidence, Mr. Vera would have been not guilty and Mr. Casiano would have been guilty of conspiracy to distribute and/or sell under 500 grams of heroin. During deliberations, after discussion of the instructions, unanimous verdicts were reached.

Id. The juror also expressed disappointment with Mr. Vera's guidelines sentencing range and the Government's evidence at the sentencing hearing. Id.

         Mr. Casiano and Mr. Vera jointly moved for the Court to conduct an in camera inquiry of the juror, arguing that the “tone and tenor [of the letter] call the validity of the verdict into question.” Joint Mot., 2. The Court denied the motion, concluding that “[i]n short, there are no circumstances suggested by Juror # 2's letter that would permit any legitimate inquiry of any juror under Rule 606(b) or relevant case law.” See Order in 3:05-cr-00195-MRK ECF No. 1168, 7.

         Mr. Vera's sentencing proceedings continued at a hearing on April 9, 2007. At the hearing, Mr. Bussert revealed that his predecessor counsel had received a letter from Mr.

         Casiano in which he sought to exculpate Mr. Vera on the heroin charge. Specifically, Mr.

         Bussert said:

MR. BUSSERT: Mr. Vera will be speaking, and I wanted to say [that] I advised him that I would do this, my customary practice is to have some sense going in what the client wants to say, particularly in a situation like this, where any comments that Mr. Vera might make could potentially jeopardize his appellate rights, I don't know specifically what he's going to say and so if the Court wants to remind him as well, that would be welcome.
THE COURT: Yes, I would like to do that.
MR. BUSSERT: He will speak in a moment, I believe. … [B]efore I get to my comments, [Mr. Vera] wanted me to note for the record that Mr. Casiano had actually sent a letter []to Peter Schaffer, I believe Mr. Schaffer was still Mr. Vera's trial counsel, that was forwarded to me, generally stating that Mr. Vera was not involved in any of the alleged activities and supporting his innocence. We just wanted to say that for the record.

Id. at 33-34.

         The letter itself was never entered into evidence. In a declaration dated February 28, 2012, Mr. Bussert indicated that, while he did not recall receiving the letter from Mr. Casiano, he would not have called him as a witness, assuming availability, as a matter of strategy. Dec. of Todd A. Bussert, ECF No. 26, at 2-3. Specifically, Mr. Bussert advised:

Even if I had possessed a letter from Mr. Casiano . . . I do not believe I would have called Eduardo Casiano to testify for the defense, assuming arguendo that he was an available witness . . . . Given my familiarity with the government's evidence, most notably the Title III intercepts of Mr. Casiano's telephone, I do not believe that Mr. Casiano would have presented as a credible witness. If anything, calling Mr. Casiano to testify would have risked undermining Mr. Vera's defense inasmuch as it would have afforded government's counsel the opportunity to cross-examine Mr. Casiano and have him elucidate on calls between him and Mr. Vera which, from my perspective, were vague and nonspecific (i.e., they did not refer directly to heroin) and, therefore, [were] helpful (or, at least, not overtly detrimental) to the defense['s theory of the case].


         At the time of sentencing, the Court found that the offense involved at least 700 grams, but less than one kilogram, of heroin, which resulted in a base offense level of 30 under the United States Sentencing Guidelines, specifically USSG 2D1.1(c)(5). See Transcript, Ex. 1 to Amend. Pet. Writ Hab. Corp., ECF No. 28-1, 58:11-15. The Court decided that no other adjustments were appropriate. Id. The Court then determined that Mr. Vera's criminal history category was IV, which resulted in a guideline imprisonment range of 135 to 168 months. See Ruling Granting Mot. in 3:05-cr-00195-MRK, ECF No. 1514. The Court sentenced Mr. Vera to a term of 160 months of incarceration, which was within the Sentencing Guidelines range. Id.

         On February 20, 2015, Mr. Vera moved to reduce his sentence under 18 U.S.C. § 3582(C)(2). Mot. in 3:05-cr-00195-MRK, ECF No. 1511. On March 25 of that year, the Court granted Mr. Vera's motion and reduced his term of imprisonment to 130 months. See Ruling Granting Mot. in 3:05-cr-00195-MRK. On November 2, 2015, the Bureau of Prisons released Mr. Vera from its custody. See Fed. Bureau Prisons, Inmate Locator Service, available at (last visited June 3, 2017).[2]

         B. Mr. Vera's Habeas Petition

         On May 25, 2011, Mr. Vera, proceeding pro se, filed a timely motion to vacate, set aside, or correct his sentence (“habeas petition”). See Motion and Memorandum of Law in Fact In Support of Title 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, ECF No. 1-2. Mr. Vera claimed that: (1) his appellate counsel was ineffective by “fail[ing] to challenge the sufficiency and accuracy of [the trial] transcript;” (2) his appellate counsel was ineffective by “fail[ing] to challenge the district court's drug quantity finding[s];” (3) both his trial and appellate counsel were ineffective by “fail[ing] to file a motion for new trial . . . where the district court received a letter from a juror stat[ing] that had the juror been a juror of one she would have acquitted Mr. Vera;” (4) the Government violated his constitutional rights by failure to comply with its obligations under 18 U.S.C. § 3500 (the “Jencks Act”); (5) both his trial and appellate counsel were ineffective by “fail[ing] to file a motion for new trial, on the basis of newly discovered evidence, . . . [involving the receipt of] a letter from Eduardo Casiano” exculpating Mr. Vera; (6) both his trial and appellate counsel were ineffective by not challenging the sufficiency of the evidence adduced at trial; and (7) both his trial and appellate counsel were ineffective by failing to claim that Mr. Vera received an unduly harsh sentence as retaliation for his decision to stand trial. See id.

         Mr. Vera then requested the Court to appoint counsel. See Mot. Appoint Counsel, ECF No. 5. The Court appointed Gary Weinberger, Esq. See Order, ECF No. 8. Mr. Weinberger, on behalf of Mr. Vera, moved to amend the fifth of his seven claims. See Motion, ECF No. 14. After the motion was granted, Mr. Vera filed an Amended Petition for Writ of Habeas Corpus, dated January 3, 2012. See Order, ECF No. 15. In this petition, Mr. Vera “amend[ed] claim 5 of his previous petition to allege that his trial counsel was ineffective by failing to file a motion for severance under Federal Rule of Criminal Procedure 14 from Eduardo Casiano on the basis of Mr. Casiano's willingness, as evidenced by his letter, to exculpate Mr. Vera.” Amend. Pet. Writ Hab. Corp., ECF No. 28, at 2. Mr. Weinberger took no position on the merit of the six remaining claims, but noted that none appeared to him to warrant either an evidentiary hearing or the appointment of counsel. Id. Mr. Weinberger withdrew as counsel for the remaining six claims and left Mr. Vera to pursue them pro se. Id.

         In a letter dated April 12, 2013, Mr. Vera wrote to the Clerk of the Court seeking termination of Mr. Weinberger and the appointment of new counsel. See Mot. to Withdraw, ECF No. 29. Mr. Weinberger then moved to be relieved of representation on April 23, 2013. Id. In his motion, Mr. Weinberger reiterated his belief that Mr. Vera's six remaining claims did not appear to warrant an evidentiary hearing. Id. at 2.

         When he moved to withdraw, Mr. Weinberger addressed Mr. Vera's fifth claim. Id. He explained that this claim “seem[ed] doomed to fail regardless of the conducting of an evidentiary hearing, ” because even if Mr. Vera could establish that his trial attorney received the letter and was ineffective in failing to move to sever Mr. Vera's case from Mr. Casiano's, he would not be able to show that the decision would be reasonably likely to change the outcome of Mr. Vera's case. Mot. to Withdraw, 6-7. Mr. Weinberger noted that he was therefore in full accordance with Mr. Vera's desire to terminate him as counsel in ...

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